Sunder on The Invention of Traditional Knowledge

James Boyle’s cultural environmentalism metaphor laid the foundation for the recognition and protection of traditional knowledge and natural resources found in the developing world. The theory underlying the Convention on Biological Diversity (CBD) was that while traditional communities may not have invented knowledge about the medicinal properties of local plants, they ought to be rewarded nonetheless for their preservation and conservation of biodiversity through limited rights to control and compensation. Taking a cue implicitly from the environmental justice movement, which demonstrated the disparate effects of environmental harms on disadvantaged minorities, the cultural environmental movement illustrated how Third World peoples are disproportionately disadvantaged by intellectual property law, which historically has not recognized their cultural contributions as protectable works of authorship. But while this paper credits cultural environmentalism with offering theoretical legitimacy for traditional knowledge protection, it further considers whether the metaphor may also disable a more dynamic and modern view of traditional knowledge. In fact, traditional knowledge is far from static and archaic and much more dynamic than the environmentalism metaphor acknowledges. The makers of Mysore silk sarees in India respond to new market, technological, and cultural needs, for example, offering waterproof sarees in hi-tech designs to today’s global consumers. I consider how the environmentalism metaphor may impede an understanding of poor people’s knowledge (a term I prefer to traditional knowledge) as creative works of authorship deserving of ex ante intellectual property rights rather than just as rights afforded ex post to reward preservation of ancient traditions or to correct longstanding cultural and distributive injustice.